Dubuque German Coll. v. St. Joseph's Coll.

• Decision Date: 19 November 1918
• Docket Number: No. 31071.,31071.
• Citation: 169 N.W. 405
• Parties: DUBUQUE GERMAN COLLEGE AND SEMINARY v. ST. JOSEPH'S COLLEGE.
• Court: Iowa Supreme Court

169 N.W. 405

DUBUQUE GERMAN COLLEGE AND SEMINARY

v.ST. JOSEPH'S COLLEGE.

No. 31071.

Supreme Court of Iowa.

Nov. 19, 1918.

Appeal from District Court, Dubuque County; Robert Bonson, Judge.

This is an action in equity to restrain the defendant, otherwise known as “Dubuque College,” from using the name Dubuque College as its corporate name, or the name of the educational institution conducted by it. The petition is in two counts. Issue was raised upon both of them. It is alleged substantially that the plaintiff corporation, the Dubuque German College and Seminary, conducted as one of the departments of its institution a college, under the name of Dubuque College, and two other departments. Plaintiff alleges in count 1 of the petition that defendant in adopting the name Dubuque College violated that principle of the common law or nonstatutory law known as unfair competition. Count 2 alleges that defendant violated section 1642 of the Code of Iowa, which provides, in substance, that such a corporation in adopting a name shall choose one which shall not be the same as any such organization previously existing. The district court, after a trial on the merits, decided the case adversely to plaintiff and dismissed the petition. Plaintiff appeals. Affirmed.

Weaver and Evans, JJ., dissenting.Brown, Lacy & Clewell and William Graham, all of Dubuque, for appellant.

Mullany & Stuart and Hurd, Lenehan & Kiesel, all of Dubuque, for appellee.

PRESTON, C. J.

We have a voluminous record of nearly 700 pages. The opinion will be condensed as much as may be in attempting to properly determine the questions of law and fact presented. Some of the fact questions are not controverted while as to others there is a conflict. It appears that plaintiff and defendant are both Iowa corporations, not for pecuniary profit, conducting educational institutions in the city of Dubuque. The two institutions are about a half mile apart. Plaintiff's school was organized in 1852, and was incorporated in 1871, under the name of “The German Theological School of the Northwest.” In 1891 it was reincorporated under the name of the “German Presbyterian Theological School of the Northwest,” by which name it was known when the president, Dr. Steffens, became associated with the school in 1902. Dr. Steffens testifies that at that time it was known locally as the German Seminary and Dubuque Seminary. Another witness testifies that at about that time it was known as the German Presbyterian Seminary. It was conducted under that name until 1911, when it was reincorporated under its present corporate name, Dubuque German College and Seminary. It was, originally at least, a theological seminary, training men to preach in the German language, and was under the auspices of the Presbyterian church. A member of plaintiff's faculty testifies that the institution was founded by Germans, and that its aim, which has been carried out ever since its founding, has been to make it characteristically German, and he says that the students are largely Germans.

Plaintiff's 1910-11 catalogue recites among other things:

“Special attention is called to the peculiar character of our work in training young men in the German and Bohemian languages. * * * As the special object of the ‘school’ is to prepare young men to preach the gospel in the German and Bohemian language, it is necessary to give a full course of instruction in academic, collegiate, and theological branches, covering a period of nine years. * * * The culmination of the work is in the Theological Seminary. The institution is organized in three departments.”

In another part of the catalogue, referring to the college department, it reads:

“The school was organized to prepare a ministry for the German people, and this purpose is still emphasized in its corporate name. * * * The articles of incorporation gave power to the directors to equip a college as soon as it should be deemed advisable.”

The catalogue also contains the following:

“ Forms of Bequest. The following forms of bequest are furnished as a convenience for any friends who may wish to remember our school in their will. The first is suitable for bequest of money, the second for the conveyance of real estate. Care should be taken to have the corporate name as given in these forms employed in making the will. Surely there are some who will be glad to leave a portion of their property for this department of the Lord's work.

I give and bequeath to the Dubuque German College and Seminary, at Dubuque, Iowa, the sum of ______ dollars.

I give and devise to the Dubuque German College and Seminary, at Dubuque, Iowa, the following described real estate, to wit: (Describing it.)”

The Educational Directory given out by the Department of Public Instruction of Iowa in 1914 recognizes plaintiff's institution as Dubuque German College. Members of the faculty of plaintiff's institution testifying as witnesses say:

“Our institution is a Presbyterian institution. We are not trying to deny that we are running a Presbyterian school. It is Protestant in its character, although there is no qualification to students coming to school. We do not undertake to convert them. A large part, or I might say all, of our pupils are Presbyterian, with an odd one now and then of almost all the other Protestant denominations. In 1872 the institution was put entirely under the control of the Presbyterian Church.”

They also testify that after the general assembly had passed on the articles of incorporation in question this stamped it with the approval of the governing body of the Presbyterian Church. After the filing of plaintiff's amended articles of incorporation in 1911, the change of name, and the approval thereof by the Presbyterian general assembly, was published in some of the Dubuque papers.

Students were educated in other languages, and later the work was broadened to include English. In 1908 and 1909 Dr. Steffens had two sets of articles of incorporation drawn, changing the name of the institution to Dubuque College. These articles were not adopted by the board of directors. There was considerable difference of opinion with reference to the name. Some wished to conserve the words Dubuque College and Dubuque Seminary, but the Germans had made great sacrifices for the institution, and it was thought that should be considered, so that the corporate name Dubuque German College and Seminary was adopted in 1911 through friendship for the Germans; Dr. Steffens so testifies. He says also that he thinks they always had the word “German” in the corporate name. The last articles of incorporation, those of 1911, provide that the corporation should be “known and designated in law by the corporate name of Dubuque German College and Seminary.” Article 2 is as follows:

“The object of this Incorporation is and shall be the maintenance, conduct, and endowment of an institution for the instruction and training of students in mathematical, classical, scientific, linguistic, literary, and theological studies; and such instruction shall be carried on in three departments, together with such other departments or courses as the board of directors shall from time to time introduce, to wit:

1. The Dubuque Academy, which shall give instruction in those branches necessary to prepare the students for entrance into an accredited college, or in branches equivalent to such a course.

2. The Dubuque College, which shall offer the usual four years course of instruction, and which shall be graded in accordance with the requirement of accredited colleges.

3. The German Presbyterian Theological Seminary, which shall furnish the instruction necessary for ministerial ordination in the Presbyterian Church in the United States of America, and which shall teach the doctrinal system and ecclesiastical polity set forth in the Confession of Faith and other standards in the said Presbyterian Church in the United States of America. Every professor must be a member in good and regular standing in the Presbyterian Church of the United States of America, and shall not be installed until his election has been approved of by the general assembly of the said Presbyterian Church. Every election shall be reported to the next succeeding general assembly, and failure to disapprove shall be considered as approval. This department shall always be under the control and supervision of the said general assembly.”

The defendant corporation conducts a college exclusively for Catholic young men. It was named St. Joseph's College in 1870, and in 1894 was so incorporated and continued under that name until May, 1914. On the date last mentioned it filed an amendment to its articles of incorporation changing its corporate name to Dubuque College. This was about three years after plaintiff's last amended articles. Defendant examined, or caused to be examined, the index to corporations in the recorder's office, and its officers testify that they did not know that plaintiff had a department known as Dubuque College. Some of the reasons given by defendant for changing its corporate name are that it wished to identify itself with the city, and that there was confusion in the use of the name “St. Joseph's” because of other of its institutions having that name. Defendant's school is Catholic, sectarian. All students who enter the institution know that they must be Catholics, or that they are entered with the understanding that they wish to become members of the Catholic Church. Testimony for defendant is that no attempt is made to convert persons to the Catholic religion. One of the contentions of defendant, which will be referred to later, is that because plaintiff is a Presbyterian school, and the basis of its teachings the German language, and that defendant is a Catholic school, there is and can be no competition between the two, because they solicit different classes of patronage. Dr. Steffens was plaintiff's financial agent and gave...